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Lord Dholakia moved Amendment No. 195AA:


The noble Lord said: Chapter 5 provides measures for dealing with dangerous offenders. The Halliday report criticised the existing disparate set of provisions

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for sexual and violent offenders and identified a need for a more coherent sentencing structure to deal with this type of offender.

These measures are designed, it seems, to replace the existing structure of automatic life sentences, longer than normal prison sentences and extended sentences. Thus, Schedule 26 provides for the repeal of Sections 80, 85 and 109 of the Powers of Criminal Courts (Sentencing) Act 2000. In their place Clause 215 states that where an offence is a "serious offence" with a maximum of life imprisonment and the court regards the offender as a significant risk to the public, and the seriousness of the offence is such as to justify a life sentence, the court must impose a sentence of imprisonment for life. Clause 216 contains a similar provision for offenders under 18.

Clauses 215 and 216 also provide that where a sexual or violent offence is a serious offence, with a maximum sentence of at least 10 years, and the court takes the view that the sentence it might otherwise pass would not be sufficient to protect the public from the significant risk that the offender presents,


    "the court must impose a sentence of imprisonment for public protection".

That is a kind of indeterminate and reviewable sentence, release from which is governed by Schedule 15.

We are concerned that under Clause 215 Schedule 12 could be extended to cover other offences. The assessment of "dangerousness" under Clause 220 could fetter the discretion of the courts in making an extremely important decision for the public safety. We are not persuaded that these hoops would make sentencing any better or easier to understand. It should be for the courts to review the decision taken under Clause 221. The wide power of the Parole Board to extend sentences, even if ECHR-complaint, is undesirable and not in the interests of justice and democracy.

The intention behind the amendments is to try to open up discussion of what kind of offences will trigger those provisions and to advance our view that the list should be limited to serious or violent offences. A cursory glance at the list will show the Committee that a whole range of what are in our view non-serious offences is included.

The amendment is grouped with Amendments Nos. 195AB, 197A and 197B. They raise an issue of significant public importance. People have strong views about the best way to deal with dangerous offenders. In the course of debate on the amendments, we shall be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing; but equally it is important to identify what works and is good and effective for both defendants and victims.

Perhaps the most important change would be made by the amendment requiring that the offence be serious. Our intention is to debate what sort of offences should trigger the dangerous offenders provision and to consider what thought has been given

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to the subject since the relatively recent amendments made by the Powers of Criminal Courts (Sentencing) Act 2000.

The second question is whether it is appropriate to define "serious sexual and violent offences" by means of a list of offences. These are probing amendments, so it will be useful to hear the Minister's thoughts on those matters. I beg to move.

Lord Thomas of Gresford: This group of amendments raises the question of the best way to use public resources in the criminal justice system. A basic criticism of Chapter 5 of Part 12 is the high cost involved in putting it into effect.

For example, it requires a massive increase in the material required for the sentencing court: the gathering of information about the circumstances of the offence; the pattern of behaviour of the defendant; and any further information about him that can be made available. There will then need to be submissions and argument in court about whether there is a significant risk of serious harm to members of the public occasioned by further offences set out in the list in the schedule. Those offences may be quite different from the offence for which the defendant stands before the court to be punished.

The scheme also envisages a significant lengthening of terms of imprisonment. The Committee will know from our many debates on the subject that imprisonment is extremely costly. It means more imprisonment by reason of the number of life sentences that will be imposed and by the new sentence of imprisonment for public protection, under which it is envisaged that imprisonment of a defendant will continue indefinitely until the Parole Board orders release. There is then the cost of extending the Parole Board and its bureaucracy to cope with what will be a massive increase in its workload.

The provisions then envisage that after the completion of sentences of imprisonment a defendant will serve a period on licence. The cost of supervising licences—presumably by the probation service—of both those released from life sentences or sentences imposed for public protection and those subject to extended sentences of up to five years for violent offences or eight years for sexual offences must also be considered.

So where will the money come from to pay for more court days, more judge time and the increased workload of defence and prosecution lawyers, to build new prisons to accommodate those prisoners who will be held for longer, to extend the Parole Board and to expand the probation service? I suggest, from cutting back on rehabilitation schemes, on which the emphasis should always lie.

The purpose of this group of amendments is to try to introduce some common sense to the scheme, so that not everyone who appears in court will have to go through the period of assessment of risk to the public. The list in Schedule 2 is simply a complete list of all violent offences in Part 1 and sexual offences in Part 2 that may attract a sentence of two years or more.

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Is it indeed the Government's intention that the sentencing court should automatically carry out the process of assessment of risk to the public whenever there is a conviction for one of those offences? There are more than 60 violent and more than 40 sexual offences listed in the schedule. Or will it be for the prosecution to draw the schedule's provisions to the court's attention? Clause 220(3) makes it mandatory on a second conviction for one of the scheduled offences for the court to assume—presume—risk to the public, so that the burden of establishing that it would be unreasonable to make such an assumption falls on the defence.

The provisions contain a huge extension of legal work in court, imprisonment, Parole Board involvement and probation service work supervising licences—all very costly. We suggest that the emphasis is in the wrong direction.

Lord Carlisle of Bucklow: I strongly support what the noble Lord, Lord Thomas, said. The effect of the clauses taken together is bound to mean a substantial increase in the use of life imprisonment and in sentences of indeterminate length. In themselves, they are bound to increase the prison population. What is more, they are likely to have a knock-on effect on the length of sentences given for other offences of that nature.

I wonder whether the Government have really thought through the vast increase in the prison population that that could cause. I invite the Minister to tell us what estimate they have of its effect on the prison population, on cost and, as the noble Lord, Lord Thomas, says, on services such as the probation service.

While I am on my feet, perhaps I may raise another matter. If I understand the provisions correctly, if someone has committed a specified offence—which, as the noble Lord, Lord Thomas, said, is one of a numerous list to be found in the schedule—and, in the view of the court, it is a serious offence, the court is bound to consider whether there is a risk of serious harm to members of the public because of the possible repetition of that offence and, if it finds that there is, must sentence the person to life imprisonment if that is the maximum sentence. Equally, as I understand it, the court must make a public protection order if the maximum sentence is one of two years.

I am not sure about what is meant by Clause 216. I ask this in genuine ignorance. Is it limited to offences for which the maximum would otherwise be 10 years' imprisonment? I ask that because Clause 216(2) states that if,


    "the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life",

and if the court,


    "considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life".

It then refers to,


    "a case not falling within subsection (2)".

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Since a serious offence is described as one of the specified offences, and many specified offences hold a maximum sentence of less than 10 years—for example, assault occasioning actual bodily harm, with a maximum of merely five years—does that mean that someone convicted of assault occasioning actual bodily harm could be the subject of a public protection sentence, which would be an indefinite sentence subject merely to release by the Parole Board? I think that I am wrong in what I ask, but I would be grateful for clarification from the Minister.

3.30 p.m.

Lord Campbell of Alloway: Briefly, I wholly support what has been said by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle. There seems to be a most serious misunderstanding on the part of the Government on a much wider, general plane. The provision will result in a vast increase in the prison population. It is wrong for the Government to take any steps, even if they could be justified on any other grounds—frankly, I do not think that they are in this case. Until we have more prisons or acceptable prison statistics, and overcrowding has been addressed, the Government ought not to introduce that sort of legislation at all. Unless the Minister can give some form of concrete assurance that something will be done about the prisons which can accommodate the proposals, the Government should withdraw.


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